When Lyndon B. Johnson initially asked Earl Warren to chair the commission to investigate John F. Kennedy’s assassination, the Chief Justice respectfully declined. His reasons: “First, it is not in the constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to see what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting on the case.” Concerned that the wild conspiracy stories circulating around the world might lead to nuclear war, Johnson insisted. He said it was Warren’s patriotic duty “in this hour of trouble.”

On the first day the Commission met, Warren, who was a close friend of Kennedy’s, told his staff: “I enter into it with great feeling of both inadequacy and humility because the very thought of reviewing these details day by day is really sickening to me.” Despite such misgivings, Warren dutifully set up the Commission in offices diagonally across the street from the Supreme Court – on the fourth floor of the Veterans of Foreign Wars building — so that he could carry on his full Court duties during the grueling ten-month investigation.

During its third meeting, on December 15, 1963, the Commission discussed the problem of how to deal with the press. Although as governor of California he had embraced the Fourth Estate, Warren had grown used to keeping reporters at arm’s length since he had become head of the judiciary a decade before. Warren emphatically told the other members present at that meeting that he would refuse to speak to TV reporters: “I never have [appeared on television] and I don’t propose to do it here…. I am going to treat this as much in a judicial way as I possibly can, and that in the first place is not to talk.” He also declined to hire a press specialist, which Commission staffer Howard P. Willens says in retrospect “was probably a mistake.” Instead, Commission members issued a short press release after every meeting and mostly dodged the cameras and microphones that besieged them.

Stuart R. Pollak, who clerked for the Chief Justice in the 1962 Term and was later loaned by the Justice Department to help write the Warren Commission report, witnessed first-hand the continuity of Warren’s philosophy on press secrecy from the Court to the Commission. From day one the Chief Justice had emphasized confidentiality to Pollak and the other Supreme Court clerks: “After decisions come down, you are going to be approached…Great thing for your egos to be able to talk to the press. [But] There’s no personal aggrandizement here….What went on in leading up to the opinion, that stays in here. The Court issues its written opinions and the written opinions are what is out there for people to interpret.”

But while this secrecy policy “absolutely fit the Court,” according to Pollak, Warren’s conviction that the Commission’s report would “speak for itself” was misguided. “I think most of the people who were connected with the Commission maintained their silence much longer really in deference to this view from the Chief,” Pollak recalls, “And I think perhaps from a historical perspective it would have been better if people . . . had spoken up more quickly and come to the defense of the report.”

Johnson’s choice of the Chief Justice to head the Commission was thus problematic for reasons other than those Warren had outlined to the President when he first turned him down. The Chief was unprepared to see the need for transparency. Operating in secrecy also made it easier for him to get the work done quickly, so he could return to his real job. Had Warren appeared on television defending the report’s findings, or assigned other Commission members to speak to the press, would all conspiracy theories have been laid to rest? It is doubtful, as the Commission committed other procedural errors.

But daily briefings to reporters and public airings of the Commission’s work would have shown the doubting public that Warren and his staff were men of integrity with crack legal skills who were working their hardest to uncover the truth.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.